HORRIGAN & JENNINGS

Horrigan and Jennings were in a long-standing de facto relationship before the Family Court. They had entered into consent orders in 2011, which were fully implemented. Jennings sought a property settlement after the relationship ended. The trial judge dismissed Jennings' application on the basis that there were no circumstances that warranted an order under s 90SM of the Family Law Act 1975 (Cth). Horrigan appealed the dismissal of his application, arguing that the trial judge failed to consider the factors set out in s 90SM(4) of the Act. Horrigan also sought an order for Jennings to pay his costs of the appeal. Jennings opposed the appeal and the application for costs.
The court was required to determine whether the dismissal of Jennings' application for property settlement constituted an order under s 90SM of the Family Law Act 1975 (Cth). The court also needed to decide whether the primary judge erred by not considering the factors set out in s 90SM(4) of the Act when dismissing Jennings' application. Additionally, the court had to determine whether Horrigan was entitled to an order for Jennings to pay his costs of the appeal. The court found that the dismissal of Jennings' application for property settlement did not constitute an order under s 90SM of the Act. However, the court held that the primary judge should have considered the factors set out in s 90SM(4) of the Act when dismissing Jennings' application. Nonetheless, the court found that the primary judge's decision was not materially affected by the failure to consider those factors. Therefore, the appeal was dismissed. The court also found that Horrigan was entitled to an order for Jennings to pay his costs of the appeal, given that Horrigan was wholly unsuccessful. The court ordered that Jennings pay Horrigan's costs of and incidental to the appeal in the sum of $10,000, to be paid within 28 days of the date of the orders.